'.-^ 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


IlSrFLTJENOE  OF  THE  BAR 


IN 


OUR  STATE  AND  FEDERAL 
GOVERNMENT. 


ANNUAL  ADDEESS 

BEFORE 

THE   SOUTHERN  NEW  HAMPSHHtE  BAR 
ASSOCIATION, 

FEB.  23, 1894, 

> 

By  J.  H.  BENTON,  tfe. 


BOSTON 

1894. 


^ 


^a. 


INFLUEISrOE  OF  THE  BAR 


IN 


OUR  STATE  AND  FEDERAL 
GOVERNMENT. 


ANNUAL  ADDRESS 


BEFUEE 


THE   SOUTHERN  NEW   HAT^IPSHHiE   BAR 
ASSOCIATION, 

FEB.  23,  18'.ti, 

By  J.  H.  BENTON,  Jr. 


BOSTON 
1894. 


^4-4-C^i 
1S54-' 


Copyright  1894, 
J.  H.  BENTON,   Jr. 


"  I  hold  every  man  a  debtor  to  his  profession  :  from  the  whicli  as  men 

of  course  do  seek  to  receive  couuteuance  and  profit,  so  ought  they  of 

duty  to  endeavour  themselves  by  way  of  amends  to  be  a  help  and  ornament 

thereunto." 

Bacon  —  Maxims  of  the  Law- 


Mr.  President  and  Gentlemen  of  the  Association  : 

If  I  Avere  to  address  the  Bar  of  a  State  where  tifty  years  of 
legislative  attempts  to  substitute  a  purely  statutory  code  of 
procedure  for  the  forms  and  methods  of  the  common  law 
had  resulted  in  absolute  failure  ;  where  constant  experiments 
to  replace  the  rules  of  the  common  law  had  so  complicated 
its  laws  that  the  decisions  of  its  courts  are  rapidly  becoming 
mainly  constructions  of  constantly  changing  statutes  ;  and 
where  the  rule  of  admission  to  the  Bar  had  become  so  lax  as 
to  invite  stiingent  les-islative  reoulation,  I  mi"-ht  follow  the 
example  of  the  president  of  the  New  York  Bar  Association 
at  its  recent  annual  meeting,  and  speak  upon  the  importance 
of  "Law  lief orm." 

But  in  this  State  the  discussion  of  such  a  subject  is,  hap- 
pily, unnecessary ;  for  here  a  simple  and  effective  code  of 
procedure  has  been  developed  from  the  forms  and  methods 
of  the  common  law  with  but  little  aid  from  legislation,  while 
the  statutes,  as  embodied  in  your  recent  admirable  compila- 
tion, have  been  designed  not  so  much  to  change  as  to  su})- 
plement  and  apply  the  principles  of  the  common  law.  And 
the  Bar  has  enforced  a  standard  of  admission  to  its  mem- 
bership so  excellent  as  to  leave  no  need  of  legislation  for 
that  purpose. 


The  araphic  sketches  of  the  deceased  members  of  your 
Bar, which  have  just  ])rought  to  us  afresh  the  grace  and  the 
strength  of  their  author,  render  it  presumptuous  to  attempt  a 
monograph  upon  any  one  of  the  many  ilhistrious  meml:»ers 
of  our  profession  who  have  adorned  the  annals  of  your 
State. 

I  have,  therefore,  souglit  to  bring  some  small  contril)ution 
to  an  old  subject,  and  shall  speak  upon 


THE     IXFLUEXCE    OF    THE    BAR     IN    OUR     STATE    AND    FEDERAL 

GOVERNMENT. 

To  fully  understand  this  we  must  keep  closely  in  mind 
the  primary  principle  upon  which  this  government  is  based, 
and  from  which  it  has  been  developed,  which  is,  that,  sub- 
ject only  to  written  constitutions,  all  political  power  resides 
in  the  majority  of  the  people,  without  qualification  of  pro[)- 
erty  or  knowledge.  So  carefully  is  this  power  preserved 
that  the  constitutions  of  twenty-three  states  expressly  de- 
clare that  the  enumeration  of  rights  therein  shall  not  be  con- 
strued to  impair  or  deny  others,  which  are  retained  by  the 
people. 

Unrestrained,  unqualified  "  manhood  suffrage  "  is  the  basis 
of  our  government,  and  every  possible  constitutional  provi- 
sion has  been  made  to  secure  and  protect  it,  and  to  give  it 
ample  force  and  effect. 

The  rioht  of  suffraoe  is  by  the  constitutions  of  all  the  states 
given  to  every  male  citizen  of  twenty-one  years  of  age,  of 
sound  mind,  who  has  not  been  convicted  of  infamous  crime, 
with  varying  but  very  slight  conditions  as  to  residence,  with 
no  substantial  property  qualification  ;  and  practically  with- 
out educational  qualification  of  any  kind.     In  Connecticut  the 


voter  must  be  able  to  read  the  constitution  and  statutes  of  tlie 
State.  In  Massachusetts  lie  must  I)e  able  to  read  the  consti- 
tution and  write  his  name.  In  Mississippi  he  must  be  aide 
to  read  any  section  of  the  constitution  or  to  understand  the 
same  when  read  to  him  or  give  a  reasonable  interpretation 
of  it.  In  Alabama  all  educational  qualitications  are  ex- 
pressly forl)idden  by  the  constitution.  In  nearly  all  the 
states  a  pauper  who  can  neither  read  nor  write  has  the  same 
right  of  suffrage  as  the  best  educated  and  most  wealthy 
citizen . 

With  this  unlimited  right  to  vote  there  is  also  the  un- 
limited right  of  speech  and  pul»lication.  Twenty-eight 
states  have  express  constitutional  provisions  giving  the  right 
to  speak,  write,  and  publish  on  all  subjects. 

Not  only  legislative  but  nearly  all  executive  and  judicial 
officers  are  chosen  b}^  popular  vote.  The  governor,  and  all 
of  the  more  important  executive  officers  of  all  the  states, 
and  the  judges  of  the  higher  as  well  as  of  the  inferior  courts 
in  most  states  are  elected  by  popular  vote.  In  a  few  they 
are  elected  by  the  Legislature,  and  in  a  still  smaller  numl)er 
they  are  appointed  by  the  Executive  and  confirmed  l)y  the 
Senate  or  a  Council. 

The  President  of  the  United  States  is  now  practically 
chosen  by  popular  vote  of  the  states,  the  Electoral  College 
having  become  only  a  machine  to  register  the  vote  of  the 
people  of  each  state,  and  there  seems  to  he  danger  that  the 
Senate  of  the  United  States  may  also  come  to  l)e  chosen  by 
popular  vote  of  the  states. 

In  most  states  the  tenure  of  the  judges,  even  of  the  highest 
courts,  is  limited  to  a  more  or  less  brief  term  of  years.  In 
many  of  the  states  the  judges  may  be  removed  by  the  gov- 
ernor upon  the  request  of  the  Legislature,  and  in  all  of  the 


6 

states  thev  mav  l)e  i^racticallv  removed  from  office  bv  the 

l>  (.'  i.  c  «. 

abolition  of  the  particular  court  of  which  they  are  judges. 
Even  the  Supreme  Court  of  the  United  States  can  be  changed 
by  adding  to  its  numbers. 

And  that  this  unrestrained  power  of  the  people  may  have 
the  widest  scope,  there  is  practically  no  qualification  of 
property  or  knowledge  required  for  either  legislative,  exec- 
utive, or,  in  most  cases,  judicial  office  in  state  or  nation. 
Several  of  the  state  constitutions  expressly  provide  that  no 
property  qualification  shall  be  required,  and  the  constitution 
of  Alabama  provides  that  no  educational  qualification  shall 
be  required  for  any  office.  In  most  of  the  states  there  is 
no  constitutional  (j[ualification  required  for  even  the  highest 
judicial  office.  In  Minnesota,  Missouri,  Arkansas,  Colorado, 
Alabama,  and  Louisiana,  the  judges  of  the  highest  court  are 
required  to  be  "  learned  in  the  law  "  :  in  Maryland  they  are 
"  to  be  selected  from  those  who  have  been  admitted  to  prac- 
tise law  and  who  are  most  distino-uished  for  intesfritv,  law, 
and  sound  legal  knowledge";  in  Virginia  they  must  have 
held  a  judicial  situation  under  the  United  States,  or  have 
practised  law  five  years ;  in  Texas  and  Georgia,  they  nuist 
have  practised  law  or  held  a  judicial  position  in  a  court  of 
record  for  seven  vears  :  in  Kentuckv  and  Arkansas  for  eiaht 
years  ;  in  Louisiana  for  ten  }'ears  ;  in  Colorado  and  Florida 
they  must  have  been  admitted  to  practise  in  the  Supreme 
Court  of  the  State. 

The  ultimate  danger  to  the  security  of  life  and  property 
under  such  a  system  of  government  is  apparent.  It  is  safe 
to  say  that  no  student  of  history  belie^'ed  at  the  time  the 
Republic  was  formed  that  am'  government  thus  subject  to 
the  practically  uncontrolled  power  of  the  people  by  popular 
vote  could  lonof  continue. 


The  wisest  of  the  framers  of  the  federal  and  State  con- 
stitutions had  serious  doubts  as  to  this,  and  evidently  felt 
that  as  the  country  grew  in  wealtli,  and  social  and  iiecuniary 
disparity  of  condition  increased,  greater  safeguards  for  the 
security  of  life  and  property  would  l)e  required. 

Their  fears  would  have  been  greater  if  they  had  antici- 
pated our  marvellous  material  growth  and  development. 
The  most  wonderful  thing  in  all  political  history  is  that  a 
nation  of  nearly  seventy  million  people,  with  enormous 
wealth,  great  cities,  increasing  inequality  of  pecuniary  and 
social  condition,  and  a  population  composed  of  the  most 
diverse  elements,  should  have  l)een  safely  developed  under 
such  an  absolutely  popular  form  of  government.' 

It  is  familiar  history  that  Hamilton,  ]Morris,  and  others  of 
the  more  conservative  framers  of  the  Federal  Constitution 
had  grave  misgivings  on  this  sul)ject,  and  sought,  though 
with  comparatively  little  success,  to  introduce  into  the  Con- 
stitution safeguards  against  the  results  which  they  expected 
would  follow  from  the  uncontrolled  power  of  unlimited  pop- 
ular suffrage.  Even  Jefferson,  the  most  ardent  of  Demo- 
crats, and  the  most  hopeful  statesman  of  his  time,  freel}' 
confessed  his  fear  of  the  ultimate  tyranny  of  the  majority 
throuo-h  the  legislative  l)ranch  of  the  jyovernment. 

That  distrust  of  the  power  of  our  government  to  protect 
persons  and  property  with  increase  of  territory,  of  popula- 
tion, and  of  wealth,  which  these  statesmen  then  had,  has 
always  existed  among  thoughtful  men,  and  the  wisest  stu- 


1  We  have  received  by  immigration,  since  1820,  more  than  fifteen  million 
inhabitants,  and  to-day  it  is  safe  to  say  that  more  than  one  third  of  our 
entire  population  is  of  foreign  birth  or  immediate  foreign  parentage. 
More  than  one  half  of  the  population  of  Massachusetts  is  probably  of 
foreign  birth  or  immediate  foreign  parentage. 


8 

dents  of  history,  reasoning  from  what  has  been  tlie  result  of 
popular  government  elsewhere,  have  continued  to  conlidently 
predict  that  our  government  must  ultimately  change  to  a 
stronger  form,  or  the  safeguards  of  life  and  property  would 
be  gradually  destroyed. 

Examples  of  this  are  numerous  and  familiar,  notal^ly  that 
of  Lord  Macaulay,  who  in  his  famous  letter,  on  the  receipt 
of  a  copy  of  Randall's  "  Life  of  Jefferson  "  from  the  author, 
in  1857,  wrote  that  while  he  was  much  obliged  for  the 
books,  he  could  not  "  reckon  Jefferson  among  the  bene- 
factors of  mankind,"  because  he  had  ''long  been  convinced 
that  institutions  purely  democratic  nuist  sooner  or  later 
destroy  liberty  or  civilization,  or  both." 

He  stated  his  fears  in  the  following  language  :  — 
"As  long  as  you  (the  Americans)  have  a  boundless  extent 
of  fertile  and  unoccupied  land,  your  laboring  population  will 
be  far  more  at  ease  than  the  laboring  population  of  the  Old 
World  ;  and,  while  that  is  the  case,  the  Jefferson  politics  may 
continue  to  exist  without  causnig  any  fatal  calamity.  But  the 
time  will  come  when  New  England  will  be  as  thickly 
peopled  as  old  England.  Wages  will  be  as  low,  and  will 
fluctuate  as  much  with  you  as  with  us.  .  .  .  Then  your 
institutions  will  be  fairly  brousrht  to  the  test.  ...  It  is 
quite  plain  that  your  Government  will  never  be  able  to 
restrain  a  distressed  and  discontented  maiorit3^  For  with 
you  the  majority  is  the  Government,  and  has  the  rich,  who 
are  always  a  minority,  absolutely  at  its  mercy.  ...  I  seri- 
ously apprehend  that  j^ou  will,  in  some  such  season  of 
adversity  as  I  have  described,  do  things  which  will  prevent 
prosperity  from  returning  ;  that  you  will  act  like  people  who 
should  in  a  year  of  scarcity  devour  all  the  seed  corn,  and 
thus  make  the  next  a  year,  not  of  scarcity,  l)ut  of  absolute 


9 

famine.      There  will  be,  1  fear,   8j)()liati()ii.     The  spoliation 
will  increase  the  distress.     The  distress  will  produce  fresh 
spoliation.     There  is  nothin<r  to  stop  you.     Your  Constitu- 
tion is  all  sail  and  no  anchor.     As  I  said  before,  when  a 
society  has  entered  on  the  downward  progress,  either  ci\ili- 
zation    or    lil)erty    must    perish.       l^^ither    some    Ca'sar    or 
Xapoleon  will  seize    the  reins  of  irovernnient  with  a  strong 
hand,  or  your  republic  will  be   as  fearfully  plundered   and 
laid  waste   by  l)arbarians  in   the  twentieth  century  as  the 
Roman   Empire  Avas  in  the  tilth  :  with  this  difference,  that 
the    Huns    and    Vandals    who    ravaged  the  Kom^n  Empire 
came  from  without,  and  that  your  Huns  and  Vandals  will 
have  been  engendered  within   your  own  country,  by  your 
own  institutions."  ^ 

In  1863,  Professor  Freeman,  the  author  of  the  "Norman 
Conquest,"  gave  to  one  of  his  most  learned  historical  works 
this  title :  "  History  of  Federal  Government  from  the 
Foundation  of  the  Achaian  League  to  the  Disruption  of  the 
United  States."  2 

In  this  work  he  said  that  while  it  was  dangerous  to  try  to 
prophesy,  he  coidd  not  help  thinking  that  the  United  States 
and  the  Confederate  States  would  exchange  ambassadors 
before  the  year  1869. 

I  think  all  thoughtful  men  must  to  a  certain  extent  share 
the  misgivings  of  Macaulay  as  to  our  future,  especially  in 
view  of  the  growing  disinclination  of  those  who  have  the 


'  "  Macaulay's  Life  and  Letters,"  Trevelyan,  2cl  Ed.,  Vol.  2,  Ap- 
pendix. 

*  Tlie  book  was  advertised  in  tlie  United  States  by  Little  &  Brown  witli 
tlie  following  note  :  '^Scarce.  Owing  to  the  indefinite  postponement  of 
the  -Disruption  of  the  United  States,'  the  author  has  only  published 
Volume  I.  of  this  interesting  book." 


10 

laiyest  property  iiit3rests   to    take    an    active    part    in    the 
o^overnment. 

But  up  to  the  present  time  his  predictions  have  not  l^een 
fulfilled  to  any  appreciable  degree. 

The  Republic  has  grown  from  a  few  feeble  scattered  colo- 
nies, fringing  the  Atlantic  coast,  to  nearly  fifty  strong  and 
populous  states,   stretching   across  the    continent ;    from    a 
population  of    less   than  four    millions    to    nearly  seventy 
millions ;    from  communities  with  practically  no    social   or 
commercial  intercourse,  with  little  commerce  upon  the  sea 
and  smaller*  commerce  upon  the  land,  with  no  railways  and 
no  telegraph,  with  substantially  no  wealth,  no  money,  and 
no  credit,  to  a  great  and  opulent  nation  bound  together  by  a 
hundred  and  seventy-five  thousand  miles    of    railway,  and 
nearly  a  million  miles    of    telegraph  and  telephone  lines ; 
with  exports  and  imports  equal    to  those    of    France    and 
Germany  combined;   with  internal  navigation  and  foreign 
commerce  on  the  sea,  the  tonnage  of  which  exceeds  that  of 
Great  Britain ;  with  an  internal  commerce  greater  than  the 
entire  foreign   commerce    of    Great    Britain,  France,    Ger- 
many, Russia,   Austria,  Hungary,  and  Belgium  combined; 
Avith  annual  manufactured  products  of   the  value  of   eight 
billion    seven    hundred    and    fifty    millions    of    dollars,  or 
nearly  twice  those  of    Great  Britain,   and  more  than    half 
as    nmch    as    those    of    the    whole    of    Europe ;    and    with 
accumulated   wealth  of  nearly  seventy  billions  of  dollars. 
A   high   protective  tariff  has  largely  contrilnited  to  raise 
wao-es  to  a  hidi  standard  and  thus  incited  immigration  to 
such  an  extent  that  within  the  last  sixty  years  the  country 
has  received  into   its  population  more  than  fifteen  million 
immigrants,  or  a  million  more  persons  than  composed  its 
entire  population  in  1840. 


11 

Its  population,  though  probu])ly  still  more  evenly  (listril>- 
uted  than  in  older  countries,  has  rapidly  tended  toward  larcre 
commercial  and  manufacturing  centres,  until,  from  only  six 
cities  with  a  po|)ulation  of  over  eight  thousand  each  and  one 
of  seventy-tive  thousand,  it  has  come  to  have  four  hundred 
and  forty-eight  cities  with  a  population  of  over  eight  thou- 
sand each,  fourteen  with  a  popuhition  of  one  hundred  and 
tAventy-tive  lliousand  to  two  hundred  and  iifty  tliousand  each, 
three  which  have  each  more  than  a  million,  and  two  which 
have  each  more  than  a  million  and  a  half,  of  inhabitants. 

Enormous  wealth  has  been  rapidly  accumulated  in  a  few 
hands  and  though  on  the  whole  wealth  is  still  more  equally 
distributed  than  in  other  countries,  disparity  of  pecuniary 
and  social  condition  has  constantly  increased.  And  yet 
life  and  property  have  remained  as  secure  as  in  any  country 
on  which  the  sun  shines. 

How  has  this  marvellous  result  been  accomplished  ?    What 

has  been  the  conservative  power  which  has  thus  reconciled 

diverse   and  conflicting  interests  and  held  the  safeguards  of 

life  and  property  secure   amid  this   surging   sea  of  poi-)ular 

suffrage  ?     I  think  the  answer  to  this  question  is  to  be  found 

in  the  words  of  the  most  accurate   and  philosophic  foreign 

observer  of  our  institutions,  who,  after  a  careful   study   of 

them  in  every  aspect,  wrote  :  — 

"I  cannot  believe  that  a  republic  could  subsist  at 
the  present  time  if  the  influence  of  lawyers  in  jmblic 
business  did  not  increase  in  proportion  to  the  power 
of  the  people."  ^ 

And  in  the  statement  of  INIr.  Justice  Harlan,  who,  at  the 
celebration  of  the  centennial  of  the  adoption  of  the  Federal 
Constitution,  said :  — 


1  De  Tocqucville  in  1835. 


12 

"If  there  be  security  for  life,  liberty,  and  property, 
it  is  because  the  lawyers  of  America  have  not  been 
unmindful  of  their  obligation  as  ministers  of  justice." 

I  believe  that  few  persons  realize  to  what  extent  the  Bar 
has  participated  in  the  government,  and  shaped  the  direction 
of  pul)lic  affairs  in  the  United  States.  No  complete  statis- 
tics have  been  prepared  showing  the  number  of  lawyers  in 
proportion  to  the  population,  and  their  proportion  as  mem- 
bers of  the  legislative,  executive,  and  judicial  department  of 
the  federal  and  State  governments. 

I  have  therefore,  within  the  limits  of  time  and  material  at 
my  command,  sought  to  gather  some  information  upon  this 
subject. 

Prior  to  the  census  of  1850,  lawyers  were  classed  with 
other  learned  professions  in  the  classification  of  occupations, 
and  it  is  now  impossible  to  ascertain  their  number. 

Since  1850  their  number  and  proportion  to  the  male 
po[)ulation  can  be  ascertained  and  I  have  taken  the  male 
population,  as  the  most  convenient  and  accurate  basis  of 
comparison,  as  the  number  of  qualified  voters  in  each  State 
is  not  easily  ascertained  Avitli  accuracy. 

In  1850,  the  male  population  of  tlie  United  States,  was 
11,837,6(30,  of  whom  23,l)3i»,  or  one  in  494  were  lawyers; 
in  18G0,  it  was  IG, 085, 204  of  whom  33,193,  or  one  in  484 
were  lawyers;  in  1870  it  was  19,493,565,  of  whom  40,736, 
or  one  in  479  were  lawyers  ;  and  in  1880,  it  was  25,518,820, 
of  whom  64,137,  or  one  in  398  were  law^^ers. 

In  1890,  the  male  population  was  32,067,880,  but  the  cen- 
sus computations  as  to  occupations  have  not  been  completed, 
and  it  is  therefore  impossible  to  give  the  number  of  lawyers 
as  ascertained  by  the  census  of  1890.  If  it  be  assumed  that 
the  increase  in  the  number  from  1880  to  1890  was  equal  to 


18 

the  increase  in  the  number  from  1870  to  18.S0,  there  were 
87,538  lawyers  in  tlie  United  States,  in  1890,  or  one  in  3GG 
of  the  male  population.  But  as  the  increase  in  the  numhor 
from  1S70  to  1880  was  proportionately  ffreater  tlian  the  in- 
crease of  the  population  during  that  period,  this  estimate 
may  be  too  large.  If,  however,  the  number  increased  from 
1880  to  1890  only  in  proportion  to  the  increase  in  the  popu- 
lation, there  were  in  the  United  States  in  1890,  80,572 
lawyers,  or  one  in  398  of  the  male  population. 

It  appears,  however,  that  the  proportion  of  lawyers  to  the 
male  population  has  constantly  increased  each  decade  from 
1850  to  1880,  from  one  in  494  in  1850  to  one  in  398  in  1880, 
and  I  know  of  no  reason  why  the  i)roportion  did  not  con- 
tinue to  increase  from  1.S80  to  1S90.  It  is  doubtless  within 
l)ounds  to  say  that  at  the  present  time  at  least  one  in  every 
400  of  the  male  population  of  the  United  States  is  a  member 
of  the  legal  profession  ;  and  while  a  portion  of  them  are 
doubtless  engaged  more  or  less  in  other  pursuits,  still  they 
have  all  been  trained  to  that  accuracy  of  thought  and  con- 
servatism of  action  which  are  the  essential  characteristics  of 
the  profession. 

It  is  the  iniiuence  of  this  large  and  eonstantl}^  increasing- 
body  of  cautious  and  conservative  men  upon  state  and  fed- 
eral o-overnment  which  we  have  to  consider. 

This  influence  is  of  course  most  apparent  and  direct  in  the 
judicial  department  of  the  government,  and  if  it  were  felt 
there  alone  would  be,  perhaps,  more  important  than  any 
other  in  its  effect  upon  the  welfare  of  the  State. 

All  the  judges  of  the  numerous  federal  courts,'  and  of  the 


1  The  judges  of  the  Supreme  Court  of  the  United  States,  of  the  Court  of 
Claims,  Court  of  Private  Land  Claims,  and  of  the  United  States  Circuit 
and  District  Courts  number  261,  and  the  number  of  United  States  Com- 
missioners in  the  difl'erent  circuits  is  11)55. 


u 

hiohest  courts,  and  of  most  of  the  inferior  courts  in  all  the 
States  are  lawyers,  and  the  influence  of  the  Bar  in  their 
selection  is  so  absolute  that  it  is  practically  impossible  for  a 
lawyer  to  become  and  to  remain  a  judge  of  any  important 
court,  state  or  federal,  unless  he  commands  the  confidence 
and  respect  of  the  profession.  Of  this  the  recent  signal 
failure  of  the  most  powerful  political  organization  in  the 
United  States  to  elect  its  candidate  for  judge  of  the  highest 
court  of  New  York  against  the  protest  of  the  Bar  of  that 
State,  is  a  striking  illustration. 

In  nearly  all  the  states  the  judges  are  elected  by  popular 
vote  for  more  or  less  lorief  terms,  but  the  influence  of  the 
Bar  is  so  strong  that  it  practically  requires  their  re-election 
when  competent,  so  that  their  tenure  of  ofiice  is  now  prac- 
tically as  secure  where  they  are  elected  for  a  term  of  years 
as  where  they  are  appointed  for  life. 

And  not  only  does  the  Bar  thus  practically  make  the 
judiciary,  l)ut  its  opinions  largely  influence  judicial  deci- 
sions.    As  has  been  well  said  liy  a  foreign  observer,  — 

"  The  keen  interest  which  the  profession  takes  in 
the  law  secures  an  unusually  large  number  of  accu- 
rate and  competent  critics  of  the  interpretation  put 
upon  the  law  by  the  judges.  Such  men  form  a  tri- 
l)unal,  to  whose  approval  the  judges  are  sensitive, 
and  all  the  more  because,  like  the  judges  of  England, 
but  unlike  those  of  Continental  Europe,  they  have 
been  themselves  practising  counsel."' 

The  constant  discussions  of  legal  questions  in  our  numer- 
ous law  schools  and  legal  publications,  in  which  we  are  far 
in  advance  of  England,  have  also  much  influence  upon  the 
courts  in  their  treatment  of  questions  before  them. 


'  Bryce's  American  Commonwealth,  Vol.  1,  page  259. 


15 

We  have  fifty-six  law  schools,  with  a  membership  of  more 
than  six  thousand  students,  and  these  schools  are  to  a  irreat 
extent  conducted  by  lawyers,  who  cither  have  been  or  arc 
in  active  practice. ^ 

While  this  iniiuence  is  not  so  a])parent  as  that  exercised 
by  counsel  in  the  examination  and  aruument  of  cases  in 
which  they  are  directly  employed,  it  is  in  its  ultimate  effect 
probably  fully  as  important.  No  decision  which  the  pro- 
fession as  a  whole  does  not  accept  as  sound  can  hold  a 
permanent  place  in  our  law. 

The  effect  upon  the  federal  and  state  governments  of 
this  influence  of  the  Bar  in  the  selection  and  guidance  of  the 
judiciary  is  rendered  of  the  highest  importance  l)y  reason 
of  the  controlling  part  which  the  judiciary  have  in  the  gov- 
ernment under  our  system  of  written  constitutions.  In  no 
other  country  can  courts  bv  construction  of  constitutions  con- 
trol  legislative  and  executive  action.  Elsewhere,  judicial 
decisions  as  to  constitutional  questions  may  l)e  nullified  by  leg- 
islation. Here  it  is  not  only  the  right,  but  the  dut\'  of  the 
courts,  under  the  Constitution,  to  hold  the  legislative  and  ex- 
ecutive departments  within  the  limitations  of  the  fundamental 
law.  And  while  this  high  power  has  always  been  exercised 
with  great  caution,  it  lias  often  been  interposed  for  the  protec- 
tion of  the  fundamental  principles  upon  which  the  govern- 
ment rests,  and  upon  the  preservation  of  which  its  existence 
as  a  free  government  absolutely  depends. 

The  people  of  every  state  have  approved  the  exercise  of 
this  power  by  their  judiciary,  and  the  nation  has  approved 
its  exercise  by  the  Supreme  Court  of  the  United  States,  in 
many  instances,  in  respect  to  state  as  well  as  federal  legisla- 


'  See  Appendix  I.  for  a  list  of  the  law  schools  of  the  United  States 
with  dates  of  opening  and  present  membership. 


16 

tion.  That  court  has  never  failed  to  hold  acts  of  State  Lesis- 
latiires  or  of  Cf)UgTess  void,  which  in  its  opinion  were  beyond 
their  constitutional  power  to  enact.  It  has  thus  held  twenty 
acts  of  Congress  and  one  hundred  and  eighty-two  acts  of 
State  and  Territorial  Leaislatures  to  be  unconstitutional. ^ 

Only  four  federal  statutes  were  held  unconstitutional  dur- 
ino-  the  seventy  years  from  '  790  to  1860,  while  sixteen  were 
held  contrary  to  the  Constitution  durins:  the  thirty-three 
years  from  18(30  to  1893. 

From  1790  to  1<S(30,  thirty-two  state  and  territorial  stat- 
utes were  held  unconstitutional,  while  from  1860  to  1894, 
one  hundred  and  fifty  were  thus  held  to  be  void. 

This  increase  in  the  numl)er  of  statutes  held  unconstitu- 
tional mioht  at  tirst  be  thouaht  to  indicate  either  a  tendency 
of  the  legislative  department  to  exceed  the  limits  of  its  con- 
stitutional power,  or  of  the  judicial  department  to  more 
closely  restrain  legislative  action.  A  closer  examination  of 
the  statutes  will,  I  think,  show  that  it  is  due  to  other  causes, 
one  of  which  is  undoubtedly  the  o-reat  increase  in  the  num- 
ber  of  statutes  enacted. 

Prior  to  1860,  laws  were  made  for  less  than  thirty  million 
people,  and  to-day  they  are  made  for  nearly  seventy  millions. 

Another  cause  is  doubtless  to  be  found  in  the  fact  that 
with  the  growth  of  interstate  commerce,  and  the  decision 
of  the  Supreme  Court  of  the  United  States  that  the  power 
of  Congress  over  that  commerce  is  exclusive  of  the  power  of 
the  states,  many  state  statutes  wdiich  were  thought  to  be 
within  the  power  of  the  states  to  enact  have  been  found  to 
be  in  conflict  with  the  power  of  Congress  to  deal  with  inter- 
state commerce,  and  therefore  void. 

^  See  Appendix  II.  for  a  list  of  ttiese  decisions. 


17 

And  beyond  this,  that  great  triljunal  has,  l)y  its  construc- 
tion of  the  federal  Constitution,  largely  created  the  present 
fundamental  law  of  the  government  under  whicli  we  live. 
That  Constitution,  as  it  exists  to-day,  w  ith  the  construction 
that  has  been  put  upon  it  ])y  the  decisions  of  the  Supreme 
Court,  is  practically  as  mucji  the  work  of  the  Court  which 
has  construed  it,  as  of  the  Convention  which  framed  it. 

A  great  constitutional  lawyer  has  said  that  "  the  framers  of 
our  national  Constitution  were  idealists."  And  it  is  true  that 
this  instrument,  as  well  as  the  bills  of  rights  and  state  con- 
stitutions, were  practically  only  glittering  generalities  until 
thev  were  made  luminous  verities  l)y  the  steady  support  of 
the  Bar  and  the  decisions  of  the  Bench. 

The  federal  Constitution  was  valueless  as  the  fundamental 
law  of  a  nation,  until,  by  the  arguments  of  Webster  and  the 
decisions  of  Marshall,  it  was  made  in  fact,  as  well  as  in 
name,  the  supreme  law  of  the  land. 

To  this  supreme  law,  as  construed  and  declared  by  our 
great  national  judicial  tribunal,  and  sujiported  by  the  con- 
stant conservative  influence  of  the  Bar,  the  people  must  look 
for  the  ultimate  security  of  person  and  property. 

The  judiciary  alone  can  hold  the  constant  conflict  of  sel- 
fish interests,  which  is  an  essential  element  of  the  growth  of 
societv.  within  the  just  limitations  of  the  fundamental  law, 

"  Till  jarring  interests  of  themselves  create 
The  according  music  of  a  well  tuned  state." 

But  great  as  the  influence  of  the  Bar  has  been  in  the  judi- 
cial department  of  the  government,  it  has  been  equally 
effective,  though  less  direct,  in  the  legislative  dei)artment. 

Thouo-h  the  numl)er  of  lawyers  in  the  state  legislatures  has 
not,  as  a  rule,  been  large,  it  has  always  been  much  greater 
than  their  proportion  of  the  population  would  warrant. 


]8 

I  have  not  been  able  within  the  h'mits  of  time  and  ma- 
terial at  my  command,  and  it  is  probably  not  possible  by 
any  practicable  research,  to  ascertain  the  number  of  lawyers 
who  have  been  members  of  all  the  state  leo-islatures  and  their 
proportion  to  the  whole  membership  in  each.  I  ha^e  been 
able,  however,  to  ascertain  this  for  all  the  New  England 
States  for  periods  varying  from  twenty-four  to  ninety-four 
years,  and  for  all  the  states  except  one  at  the  present  time, 
with,  I  think,  substantial  accuracy. 

In  Maine,  since  1870,  the  average  membership  of  the  Bar 
in  both  branches  of  the  legislature  has  been  one  in  ten  of  the 
total  membership,  while  their  proportion  to  the  male  popu- 
lation has  l)een  only  one  in  four  hundred  and  sixty-eight. 

In  Vermont  the  average  membership  since  1850  has  been 
one  in  twelve,  and  the  proportion  to  the  population,  one  in 
three  hundred  and  iiftv-ei2:ht. 

In  Rhode  Island  the  average  has  been  one  in  twelve  of 
the  legislature  since  1840,  and  one  in  six  hundred  and 
seventy-seven  of  the  population. 

In  Connecticut  the  average  membership  since  1850  has 
been  one  in  sixteen,  and  the  proportion  to  the  population, 
one  in  five  hundred  and  fifty. 

In  Massachusetts  since  1840,  the  proportion  has  been  one 
in  nine  of  the  legislature,  and  one  in  four  hundred  and 
seventy-five  of  the  population. 

In  New  Hampshire  the  average  membership  from  1800  to 
1840  was  one  in  thirteen,  and  from  1840  to  1893,  one  in 
nineteen,  while  the  proportion  to  the  population  from  1840 
to  1890  was  one  in  four  hundred  and  forty-nine. 

For  ninety-three  years  at  least  one  in  sixteen  of  the  entire' 
membership  of  both  branches  of  the  Xew  Hampshire  Legis- 
lature have  been  lawyers. 


19 

If  during  these  periods  the  Bar  had  been  represented  in 
the  legislatures  of  these  states  only  according  to  their  pro- 
portion of  the  population  there  would  have  1)een  in  the 
legislature  of  Maine  a  lawyer  once  in  three  years,  in  the 
legislatures  of  Vermont,  Connecticut,  New  Hampshire,  and 
Massachusetts  once  in  two  years,  and  in  that  of  Rhode 
Island  once  in  six  years. 

The  present  membership  of  the  Bar  in  the  state  legisla- 
tures and  their  proportion  to  the  male  population,  so  far  as  I 
have  been  able  to  ascertain  it,  is  as  follows  :  — 

In  Alabama,  1  in  12  of  the  meml)ership  of  tlic  legislature, 
and  1  in  780  of  the  population. 

In  Arizona,  1  in  6  of  the  legislature,  and  1  in  41(5  of 
the  population. 

In  Arkansas,  1  in  4  of  the  legislature,  and  1  in  582  of 
the  population.  , 

In  California,  1  in  4  of  the  legislature,  and  1  in  273  of 
the  population. 

In  Colorado,  1  in  G  of  the  legislature,  and  1  in  l(jO  of 
the  population. 

In  Connecticut,  1  in  11  of  the  legislature,  and  1  in  384 
of  the  population. 

In  Delaware,  1  in  30  of  the  legislature,  and  1  in  584  of 
the  population. 

In  Florida,  1  in  5  of  the  legislature,  and  1  in  44*)  of  the 
population. 

In  Georoia,  1  in  3  of  the  legislature,  and  1  in  533  of  the 
population. 

In  Idaho,  1  in  7  of  the  legislature,  and  1  in  332  of  the 
population. 

In  Illinois,  1  in  4  of  the  legislature,  and  1  in  394  of  the 
population. 


20 

In  Indiana,  1  in  4  of  the  legislature,  and  1  in  348  of  the 
population. 

In  Iowa,  1  in  4  of  the  legislature,  and  1  in  325  of  the 
population. 

In  Kansas,  1  in  7  of  the  legislature,  and  1  in  360  of  the 
population. 

In  Kentucky,  1  in  3  of  the  legislature,  and  1  in  420  of 
the  population. 

In  Louisiana,  1  in  6  of  the  legislature,  and  1  in  566  of 
the  population. 

In  Maine,  1  in  7  of  the  legislature,  and  1  in  447  of  the 
population. 

In  ^Maryland,  1  in  5  of  the  legislature,  and  1  in  425  of 
the  population. 

In  Massachusetts,  1  in  6  of  the  legislature,  and  1  in  460 
of  the  population. 

In  Michigan,  1  in  6  of  the  legislature,  and  1  in  411  of 
the  population. 

In  Minnesota,  1  in  6  of  the  legislature,  and  1  in  463  of 
the  population. 

In  Mississippi,  1  in  5  of  the  legislature,  and  1  in  692 
of  the  population. 

In  ^Missouri,  1  in  5  of  the  legislature,  and  1  in  388  of  the 
population. 

In  Montana,  1  in  12  of  the  legislature,  and  1  in  366  of  the 
population. 

In  Nebraska,  1  in  17  of  the  legislature,  and  1  in  297  of 
the  po}iulation. 

In  Nevada,  1  in  22  of  the  legislature,  and  1  in  353  of 
the  population. 

In  New  Hampshire,  1  in  18  of  the  legislature,  and  1  in 
446  of  the  population. 


1 
f 


21 

In  New  Jersey,  1  in  5  of  the  legislature,  and     1    in    3 GO 
of  the  population. 

In  New  York,  1  in  4  of  the  legislature,  and  1  in  265   of 
the  population. 

In   North  Carolina,  1  in       of    the  legislature,  and   1    in 
891  of  the  population. 

In    North  Dakota,    1   in    7   of    the   legislature,  and    1    in 
274  of  the  population. 

In  Ohio,  1  in  4  of  the  legislature,  and   1  in  360  of  the 
population . 

In  Oregon,   1  in  5  of  the  legislature,  and    1    in  8;)2  of 
the  population. 

In   Pennsylvania,    1    in    5  of   the    legislature,   and   1   in 
428  of  the  population. 

In   Rhode  Island,  1  in  7  of  the  legislature,  and  1  in  561 
of  the  population. 

In  South  Carolina,  1  in  5  of  the  legislature,  and  1  in  791) 
of  the  population. 

In  South  Dakota,  1  in  11  of  the  legislature,  and  1  in  274 
of  the  population. 

In  Tennessee,   1  in   4    of  the  legislature,  and   1   in  511 
of  the  population. 

In  Texas,  1  in  2  of  the  legislature,  and   1  in   397   of  the 
population. 

In  Vermont,  1  in  14  of  the  legislature,  and   1    in  394   of 
the  population. 

In  Virginia,  1  in  2  of  the  legislature,  and  1  in  550  of  the 
population. 

In  Washington,  1  in  7  of  the  legislature,  and  1  in  407  of 
the  population. 

In  West  Virginia,  1  in  5  of  the  legislature,  and  1  in  500 
of  the  population. 


22 

In  Wisconsin,  1  in  6  of  the  legislature,  and  1  in  568  of 
the  population. 

In  Wyoming,  1  in  12  of  the  legislature,  and  1  in  416  of 
the  population. 

It  thus  appears  that  in  the  legislatures  of  all  the  states 
but  one  the  profession  has  a  membership  excessively  large  in 
proportion  to  its  number  in  the  population  of  the  state. 
There  is  no  reason  to  doubt  that  this  is  the  case  in  that 
state,  or  that  it  has  always  been  the  case  in  all  the  states. 

The  influence  of  the  Bar  was  controlling  in  the  formation 
of  the  Federal  Government. 

Twenty-flve  of  the  56  signers  of  the  Declaration  of  Inde- 
pendence, and  30  of  the  55  members  of  the  Convention 
which  framed  the  Federal  Constitution  were  lawyers. 

In  the  tirst  Cono-ress  of  the  United  States,  10  of  the  29 
senators,  and  17  of  the  65  representatives  were  lawyers,  and 
the  proportion  of  lawyers  to  the  total  number  of  senators 
and  representatives  has  increased  in  each  Congress,  almost 
without  exception,  until  in  the  present  Congress,  67  of  the 
84  senators,  and  222  of  the  362  representatives  are  lawyers. 

The  entire  number  of  senators  since  1787  has  been  3,122, 
of  whom  2,068  have  been  lawyers. 

The  entire  number  of  representatives  has  been  11,889,  of 
whom  5,832  have  been  lawyers. 

The  combined  meml)ership  of  Ijoth  branches  of  the  Na- 
tional Congress  from  the  beginning  has  been  15,011,  of 
whom  7,900  have  been  members  of  the  Bar. 

The  lowest  percentage  of  membership  of  lawyers  in  both 
branches  of  Cono-ress  was  in  the  tenth  Congress,  when  it 
was  16  per  cent,  and  the  highest  was  in  the  fiftieth  Con- 
gress, when  it  was  71  percent. 

In   the  House  the  lowest   percentage   was  in  the    tenth 


23 

Couore.ss,  when  it  was  12  per  cent,  and  the  hijrhest  was  in 
the  thirty-sixth  C'ongress,  when  it  was  69  per  cent. 

In  the  Senate  the  loAvest  percentage  was  in  the  thirteenth 
Congress,  when  it  was  25  per  cent,  and  the  highest  in  the 
twenty-eighth  Congress,  Avhen  it  was  91  per  cent. 

The  averaofe  membershii)  of  lawyers  in  both  ])ranches  of 
Congress  from  the  beginning  has  been  53  per  cent.  In  the 
House  the  average  has  been  49  per  cent,  and  in  the  Senate 
66. 

The  membership  of  lawyers  in  the  Senate  has  been  greater 
during  the  past  twenty-five  years  than  for  any  other  equal 
period,  and  has  averaged  from  75  to  80  per  cent  ot  the 
entire  membership.^  I  have  ascertained  the  membership  of 
lawyers  in  Congress  from  trustworthy  sources  of  informa- 
tion and  I  am  confident  it  is  not  over  stated. 

Of  the  122  different  persons  who  have  represented  New 
Hampshire  in  the  United  States  House  of  Representa- 
tives since  1789,  69  have  been  lawyers;  while  of  the  46 
senators  during  the  same  period,  30  have  been  members  of 
the  Bar. 

The  various  State  Constitutional  Conventions  have  l^een 
larsfelv  composed  of  lawyers.  In  the  convention  soon  to 
convene  in  New  York  133  out  of  the  175  members  are 
of  the  legal  profession. 

But  the  influence  of  laAvyers  in  the  State  Legislatures, 
and  Constitutional  Conventions  and  in  Congress  has  always 
been  much  greater  than  their  numbers  alone  would  warrant. 
They  have,  as  a  rule,  held  the  most  important  and  influen- 
tial positions,  and  have  ])een  to  a  large  extent  the  presiding 


1  See  Appendix  III.  for  tables  showing  percentage  of  lawyers  lu  the 
membership  of  Senate  and  of  House  in  each  Congress,  and  their  percent- 
age of  the  male  population  since  1840. 


24 

officers  who  have  appointed  the  committees  and  guided  the 
deliberations  of  these  bodies. 

Twentv-eioht  of  the  78  Presidents  pro  tern,  of  the  United 
States  Senate,  and  36  of  the  63  Speakers  of  the  House  of 
Representatives  have  ])een  lawyers. 

In  New  Hampshire,  this  has  l)een  the  case  to  a  very 
marked  degree. 

Of  the  62  Speakers  of  the  House  in  this  state  since  1791, 
50  have  been  lawyers,  and  the  Speaker's  chair  has  l^een 
occupied  by  a  lawyer  for  85  of  the  103  years. 

Of  the  35  clerks  of  the  House  since  1800,  20  have  ))een 
lawyers,  and  during  51  of  the  94  years  the  clerkship  has 
been  filled  by  a  lawyer. 

Of  the  75  Presidents  of  the  Senate  since  1791,  34  have 
been  lawyers,  and  the  presidency  has  been  filled  by  lawyers 
during  47  of  the  past  105  years. 

Of  the  45  clerks  of  the  Senate  since  1800,  36  have  l)een 
lawyers,  and  the  clerkship  of  the  Senate  has  been  filled  l)y  a 
law^yer  during  79  of  the  past  108  years. 

It  is  also  worthy  of  remark  that  the  Bar  of  New  Hamp- 
shire, like  that  of  other  States,  contril)uted  large!}'  from  its 
members  and  students  to  the  Union  army.  The  Colonel, 
Lieut. -Colonel,  and  Major  of  the  First  Regiment  were  leading 
lawyers,^  while  every  subsequent  regiment  numbered  among 
its  officers,  or  its  ranks,  law^-ers  and  law  students,  who  left 
their  clients  and  their  studies  to  follow  the  flag,  and  more 
than  one-third  of  the  commanding  officers  of  its  regiments 
who  fell  in  battle  were  members  of  the  Bar.- 

The  names  of  the  members  of  the  Bar  of  the  State  who 

'  Mason  W.  Tappau,  Thomas  J.  Whipple,  Aaron  F.  Stevens. 
2  Col,   Louis   Bell,    Col.    Albert  Henderson,    Col.    Oliver  Woodbury, 
Maj.  George  Everett,  Col.  Moses  N.  Collins,  Col.  Alex.  Gardiner, 


25 

have  thus  held  so  uuiiiy  of  its  legislative  and  executive 
offices  are  classified  in  an  appendix  to  these  remarks,  as  I 
have  thought  they  might  l)e  of  permanent  interest  to  your 
Association.^ 

Lawyers  have  been  chairmen  of  the  most  important  com- 
mittees in  the  State  Leoislatures  and  in  Congress,  members 
almost  exclusively  of  the  judiciary  connnittees,  and  of  com- 
mittees and  commissions  for  the  revision  of  the  statutes, 
doubtless,  besides,  })articipating  in  the  debates  more  than 
any  others. 

Legislative  action  is  also  intiuenced  by  arguments  before 
committees  by  lawyers  who  appear  as  counsel  for  opposing 
interests,  and  who  are  usually  of  such  learning  and  char- 
acter that  the  information  and  suggestions  given  by  them 
are  of  oreat  value. 

In  addition  to  this,  the  current  comment  and  oi)inion  of 
the  Bar  have  an  influence  upon  legislative  action  in  regard  to 
all  matters  of  general  and  permanent  legislation  similar  to, 
though  probably  not  as  great  as,  that  which  they  have  upon 
the  action  of  the  judiciary.  In  questions  of  constitutional 
law  this  influence  is  usually  controllini>-,  which  is  doubtless 
the  o-reat  reason  why,  amono-  the  multitude  of  leo-islative 
acts,  there  are  so  few  which  are  contrary  to  the  fundamental 
law. 

In  short,  it  is  safe  to  say  that  there  is  but  little,  if  an}^, 
permanent  general  state  or  federal  legislation  which  is  not 
practically  shaped  by  lawyers,  and  no  statute  which  the 
profession  as  a  whole  do  not  approve  can  hold  a  permanent 
place  in  the  law. 

The  influence  of  the  Bar  in  the  executive  department  of 
the  government  has  always  lieen  most  important. 

'  See  Appendix  IV. 


26 

The  President  and  the  state  Governors  necessarily  have 
such  large  and  important  powers,  not  only  in  respect  to  the 
execution  of  the  law,  but  in  regard  to  legislation  and  in  the 
appointment  of  other  officers  that  it  is  of  the  highest  import- 
ance these  positions  should  be  held  by  able  and  conservative 
men.  They  not  only  have  the  power  to  execute  the  law  and 
to  pardon  offences  against  it,i  but  the  right  to  call  the 
Legislature  together  for  action  at  any  time  they  may  deem 
expedient. 

It  is  also,  by  the  express  provision  of  the  federal  Constitu- 
tion and  of  most  of  the  state  constitutions,  and  by  custom 
in  all  the  states  but  one,  I  think,  the  duty  of  the  executive 
to  give  information  to  the  legislative  department  as  to  the 
condition  of  pul)lic  affairs,  and  to  recommend  such  legisla- 
tion as  he  may  deem  the  public  interest  to  require. 

This  gives  the  Executive  a  most  important  influence  in 
legislation,  for  such  recommendations,  ])eing  generally  based 
upon  more  full  information  than  it  is  practicable  for  the 
leoislature  to  ol)tain,  and  lieino-  oiven  in  most  cases  from 
purely  patriotic  motives,  justly  receive  careful  consideration 
from  the  legislature  and  from  the  people. 

The  Executive  has  also,  beyond  this,  the  uncontrolled 
power,  I\v  the  exercise  of  a  qualified  negative  upon  legisla- 
tive action,  popularly  called  "  the  Veto  Power,"  to  com- 
})el  the  legislative  department  to  revise  its  action,  and  thus 
in  the  federal  government  and  in  substantiallv  all  the  states, 
to  require  the  legislature  to  act  by  a  two-thirds  vote  of  all 
the  members  of  each  branch.  The  frequency  with  which 
this    high    power  is  now  exercised  is  well  known,  and  the 


^  The  Governor  of  New  York  during  the  last  year  granted  18  pardons 
and  110  commutations  of  sentences,  nineteen  of  which  were  to  convicted 
murderers. 


27 

manner  in  wliicli  the  Executive  niav  use  it,  merely  because 
his  judgment  as  to  the  practical  details  of  an  act  of  legis- 
lation differs  from  that  of  the  legislative  dei)artment,  has 
been  recently  illustrated  in  a  striking  manner  hy  a  i)resi- 
dential  veto  of  a  bill  for  the  construction  of  a  I)ridge  in  one 
of  the  most  important  lines  of  interstate  commerce  in  the 
Union.  ^ 

The  President  and  the  state  Governors  have  also  most 
important  powers  of  appointment  to  office,  and  though  iu  the 
federal  government  and  in  some  of  the  states  this  power  is 
cautiously  guarded  l)y  requiring  the  approval  of  the  most 
important  appointments  by  the  Senate,  or  a  Council,  it  is  as 
a  rule  practically  exercised  with  comparatively  little  check. 

It  is  thus  to  the  executive  department  of  our  federal  and 
state  governments  that  the  constitutions  necessarily  contide 
the  largest  liberty  of  individual  official  action,  and  it  is  in 
this  department  that  the  Bar  has  always  held  a  very  imi)or- 
tant  part. 

Of  the  24  Presidents  of  the  United  States,  19  have  been 
lawyers.  The  presidential  chair  has  been  occupied  by  law- 
yers for  84  years  of  the  10(5  years  since  the  adoption  of  the 
Constitution. 

Of  the  26  vice-presidents,  17  have  been  lawyers. 

Of  the  232  cabinet  officers,  175  have  been  lawyers,  with- 
out counting  the  43  attorneys  general  who  have,  of  course, 
all  been  lawyers. 

If  thev  are  included,  218  of  the  232  cabinet  officers  have 
been  members  of  the  Bar. 

Of  the  238  governors  of  the  New  England  States,  11  ;>  of 


1  President  Cleveland's  veto  of  the  New  York  and  New  Jersey  Bridge 
Bill. 


28 

the  231  whose  occupations  I  have  been  able  to  ascertain, 
have  Ijeen  lawyers. 

Of  the  1,157  governors  of  all  the  states,  578  of  the  978 
whose  occupations  I  have  been  aljle  to  ascertain,  have  been 
lawyers. 

The  followinof  are  illustrations  of  the  extent  to  which  the 
state  Governors  have  been  lawyers  :  — 

In  Alabama,  21  out  of  the  28  governors  have  been  law- 
yers :  in  Georgia,  2{)  of  the  36  ;  in  Illinois,  15  of  the  21  ; 
in  Iowa,  10  of  the  17  ;  in  Kentucky,  19  of  the  31 ;  in  North 
Carolina,  24  of  the  40;  in  Pennsylvania,  13  of  the  21;  in 
Ohio,  27  of  the  40  ;  in  New  York,  25  of  the  33  ;  in  Ver- 
mont, 28  of  the  40  ;  in  Maine,  20  of  the  35  ;  in  Connecticut, 

23  of  the  38  ;  in  Massachusetts,  21  of  the  34;  in  Virginia, 

24  of  the  39. 

But  it  is  not  in  the  leo-islature  or  from  the  executive 
chair  or  the  bench  that  the  bar  exerts  the  most  important  in- 
fluence upon  the  government.  It  is  its  influence  upon  the 
people,  at  the  source  of  political  power,  which  most  shapes 
and  directs  public  action,  and  has  the  most  far-reaching 
effect  upon  the  fortunes  of  the  State. 

The  great  conservative  power  in  the  State  is  the  constant 
influence  of  the  members  of  the  profession  upon  the  commu- 
nities in  which  they  live.  They  teach  the  countless  clients 
whom  they  advise,  and  whose  business  affairs  they  more  and 
more  direct,  the  juries  whom  they  address,  the  citizens  with 
whom  they  mingle  in  all  the  relations  of  social  and  civil  life, 
the  orderly  habits  of  thought,  and  the  conservatism  of  action 
which  are  the  safety  of  the  Republic.  Take  this  constant 
conservative  influence  out  of  our  social,  business,  and  politi- 
cal life,  and  an  here  would  the  safeguards  of  constitutional 
liberty  be  found? 


29 

Men  of  business  pursuits  usually  look  only  to  that  which 
they  believe  will  best  serve  their  ])urely  personal  purposes, 
and  reoard  evervthino-  which  stands  in  the  wav  ol  what  thev 
desire  only  as  ol)stacles  to  be  surmountedor  destroA'ed. 

The  scholar,  uneducated  by  contact  with  actual  life,  strives 
for  an  ideal  state,  and  seeks  to  guide  political  action  within 
the  limited  lines  of  his  individual  thought  and  belief.  The 
uneducated  and  ignorant  see  only  the  present  evil,  and  strike 
blindly  at  that  which  seems  to  be  most  in  the  way  of  their 
momentary  desires.  They  would  all,  with  honest  intention, 
but  with  limited  vision  and  narrow  purpose,  often  destroy 
the  legal  safeguards  upon  which  the  security  of  their  persons 
and  property  absolutely  depend.  But  the  lawyer,  educated 
and  trained  to  a  respect  for  the  established  rules  of  law, 
which  is  often  almost  su})erstitious,  and  with  an  undue  desire 
to  preserve  that  which  is  rather  than  to  attain  that  which 
should  be,  tempers  and  moderates  the  action  of  all. 

It  is  as  true  now  as  when  De  Tocqueville  wrote,  that  the 
legal   profession  in  the  United  States  is  "qualified   hy  its 

powers,  and  even  by  its  defects,  to  neutralize  the  vices  which 
are  inherent  in  popular  government."     He  wrote  :  — 

"The  lawyers  of  the  United  States  form  a  party 
which  is  but  little  feared  and  scarcely  perceived, 
which  has  no  badge  peculiar  to  itself,  which  adapts 
itself  with  oreat  flexil)ilitv  to  the  exigencies  of  the 
time,  and  accommodates  itself  to  all  the  movements  of 
the  social  body.  But  this  party  extends  over  the 
whole  communit}^  and  it  i^enetrates  into  all  classes  of 
society.  It  acts  upon  the  country  impercci)tibly,  but 
it  finally  fashions  it  to  suit  its  purposes."  ' 

Lawyers,  of  all  men,  most  appreciate  that  the  primary 
purpose  of  a  free  government  is  to  protect  the   individual 

1  De  Tocqueville's  "  Democracy  in  America,"  Vol.  1,  page  284. 


30 

against  the  many,  and  that  the  steady  maintenance  of  the 
fundamental  principles  of  the  common  law,  even  though  they 
at  times  serve  to  restrain  liberty,  is  the  only  sure  protection 
against  a  tyranny  by  the  majority,  which,  unchecked,  will 
ultimately  destroy  liberty  itself. 

The  cautious  conservatism  of  the  Bar  has  been  the  sub- 
ject of  much  flippant  observation  and  shallow  criticism,  but 
it  is  by  far  the  most  valuable  quality  which  the  profession 
brings  to  the  service  of  the  State.  It  springs  from  devotion 
to  individual  rights  under  the  law,  and  the  great  glory  of 
the  Bar  has  always  been  its  constant  courage  in  defence  of 
these  rights. 

Maynard,  with  the  weight  of  ninety  years  upon  his  snow- 
crowned  head,  leading  the  defence  against  the  arbitrary  pre- 
rogative of  the  Crown  ;  John  Adams,  standing  amid  a  storm 
of  popular  indignation  in  defence  of  hated  foreign  soldiers 
against  illegal  prosecution ;  Seward,  speaking  for  the  weak 
and  friendless  Freeman ;  and  Dana,  daring  social  ostracism 
and  personal  violence  in  defence  of  the  fugitive  slave,  are 
only  illustrations  of  how  the  Bar,  unawed  by  power, 
unmoved  by  popular  clamor,  has  always  stood  for  personal 
liberty  regulated  by  law. 

It  is  often  said  that  lawyers  leave  no  monuments  worthy 
of  their  intellectual  power  and  laljor ;  that  while  great 
soldiers  link  their  names  with  l)attles  by  which  states  are 
created  and  states  are  saved ;  great  statesmen  found  civil 
policies  by  which  nations  are  guided  and  made  great,  and 
gTeat  architects  and  artists  live  in  the  masterpieces  of  archi- 
tecture, sculpture,  and  painting,  great  lawyers  create  nothing 
which  louo-  outlasts  their  lives. 

In  a  narrow  sense  this  is  true.     The  highest  effort  of  the 


31 

lawyer  does  soon  fade  into  tradition  ;  and  even  the  jrreatest 
do  seem  to  leave  nothing  whicli  li\es  after  them. 

But  in  a  broader  sense  this  is  not  true.  AVe  labor  upon 
that  which  outlasts  the  results  of  ail  other  human  effort. 
We  build  and  preserve  the  Temple  of  Justice,  and,  to  borrow 
the  words  of  New  Hanipsliire's  most  illustrious  son  :  — 

"AVhoever  lal)ors  on  this  edifice  Avitli  usefulness 
and  distinction,  whoever  clears  its  foundations, 
strengthens  its  ])illars,  adorns  its  entablatures,  or 
contributes  to  raise  its  auijust  dome  still  higher  in 
the  skies,  connects  himself  in  name  and  fame  and 
character  with  that  which  is  and  must  ])e  as  dural^lo 
as  the  frame  of  human  society." 

And  this  shall  make  the  lawyer's  labor  immortal. 


APPENDIX   I. 


LAW   SCHOOLS   OF   THP:   UNITED    STATES. 


Albany  Law  School, 

Allen  University  Law  Dept., 

Alabama  University  Law  School, 

Baltimore  University  Law  School, 

Boston  University  Law  Dept., 
Buffalo  Law  School, 
Central  Tennessee  College, 
Cincinnati  College  Law  Dept., 
Columbia  College  Law  Dept., 
Cornell  University  Law  Dept. , 
Chaddock  College  Law  Dept., 
Columbian  University  Law  Dept., 
Cumberland  Univ'sity  Law  Dept., 
Colorado  University  Law  School, 
City  of  New  York  University, 
De  Pauw  University  Law  Dept., 
Dickinson  School  of  Law, 
Emory  College  Law  Dept., 
Georgia  University  Law  School, 
Georgetown  Univ'sity  Law  Dept., 
Harvard  University  Law  Dept., 
Hastings  College  of  Law, 
Howard  University  Law  Dept., 
Indiana  University  Law  Dept., 
Iowa  College  of  Law, 
Iowa  State  University  Law  Dept., 
Illinois  "Wesleyan  University  Law 

College, 
Kansas  University  Law  School, 
Louisville  University  Law  School, 
Little  Rock  Univ'sity  Law  Dept., 
McKendree  College  Law  Dept., 
Maryland  University  Law  School, 
Mercer  University  Law  School, 
Michigan  University  Law  School, 
Minnesota  University  Law  School, 
Missouri  State  University,  Law 

Dept., 
Missouri  University  Law  School, 


Albany,  New  York, 
Columbia,  S.  C, 
University  P.  O., 
Baltimore,  Md.,    {  Reopened, 

Boston,  Mass., 
BulTalo,  N.  Y., 
Nashville,  Tenn., 
Cincinnati, 
New  York, 
Ithaca,  N.  Y., 
Quincy,  111., 
Washington,  D.  C, 
Lebanon,  Tenn., 
Boulder,  Col., 
New  York, 
Greencastle,  Ind., 
Carlisle,  Pa., 
Oxford,  Ga., 
Athens,  Ga., 
Washington,  D.  C, 
Cambridge,  Mass., 
San  Francisco,  Cal., 
Washington,  D.  C, 
Bloomington,  Ind., 
Des  Moines,  Iowa, 
Iowa  City,  la., 


Lawrence, 
Louisville,  Ky., 
Little  Rock,  Ark., 
Lebanon,  111., 
Baltimore,  Md., 
Macon,  Ga., 
Ann  Arbor,  Mich., 
jNIinneapolis, 


Columbia, 
University  P.  O. 


Opened. 

Metn- 
bership 

1851 

41 

1883 

11 

19 

1870  / 
ISWI  i 

80 

1872 

210 

1887 

60 

1875 

8 

1833 

16(j 

1858 

625 

1887 

228 

18S2 

12 

18(!5 

.383 

1842 

71 

1802 

1858 

342 

1884 

48 

1890 

50 

1887 

185!) 

.38 

1870 

268 

1817 

363 

1878 

140 

18G5 

74 

1842 

61 

1867 

37 

18C6 

200 

1874 

44 

1878 

79 

184() 

40 

1890 

30 

1889 

26 

1825-35 

160 

1892 

1859 

*648 

1888 

242 

1872 

75 

1881 

21 

North  Carolina  University  Law 
Dept., 

Northwestern    University    Law 
Scliool, 

Notre    Dame    University    Law 
Dept., 

National  University  Law  Dept., 
Ohio  State  University  Law  School 
Oregon  University  Law  School, 
Pennsylvania    University    Law 

School, 
St.  Louis  Law  School, 
South  Carolina  University  Law 

Dept., 
Tennessee  University  Law  Dept., 
Texas  University  Law  Dept., 
Tulane  University  of  Louisiana, 

Law  Dept., 
Vanderbilt  University,  Law  Dept 
Virginia  University  Law  Dept., 
W.Virginia  University  Law  Dept 
Wisconsin  University  Law  School 
"Washington  and  Lee  University, 

Law  School, 
Willamette    University    College 

of  Law, 
Yale  University,  Law  Dept., 


34 

Chapel  Hill, 
Chicago,  111., 


Opened. 

1846-68 

Reopened,        1.S75 


Mem- 
bership. 

'        55 


;,  La.,    ( 


New  Orleans 

Washington,  D.  C, 
,  Columbus,  Ohio, 
Portland,  Ore., 

Philadelphia, 
St.  Louis,  Mo., 

Columbia, 
Knoxville, 
Austin,  Tex., 


Reorgan- 
ized, 


1859 
1869 

1883 
1893 
1891 
1884 

1852 
1867 

1884 
1890 
1883 


New  Orleans,  La., 
,,  Nashville,  Tenn.,      September,  1874 

University  P.  O.,  Va.,  1826 

,  Morgantown,  W.  Va.,  1878 

,  Madison,  Wis.  1868 


Lexington,  Va., 

Salem,  Ore., 

New  Haven,  Conn., 


1849 


1843 


204 

40-50 

105 
67 
55 

176 
81 

20 
10 

105 

49 
28 

138 
26 

170 

63 

5 

188 


APPENDIX  II. 

Cases  in  which  Statutes  have  been  held  to  be  Unconstitu- 
tional by  the  Supreme  Court  of  the  Cnited 
States  stated  in  order  of  time. 


STATUTES  or  THE  UNITED  STATES,  20. 


1792. 
Hayburn's  Case,  2  Dallas,  409. 

n\n. 

United  States  v.  Yale  Todd,  13  How- 
ard, 52  u. 

1803. 

Marbury  v.  Madison,  1  Cranch,  137. 

1851. 
United  States  v.  Ferreira,  13  Howard, 

40. 

1864. 

Gordon  v.  United  States,  2   "Wallace, 

561. 

1866. 

Ex  parte  Garland,  4  Wallace,  .333. 

1869. 
Hepburn  v.  Griswold,  8  Wallace,  603. 

1869. 
United  States  v.  DeWitt,  9  Wallace,  41. 

1869. 
The  Justices  u.  Murray,  9  Wallace,  274. 

1870. 
Collector  v.  Day,  11  Wallace,  113. 

1871. 
United  States  v.  Klein ,  13  Wallace,  128. 


1872. 
United  States  v.  Railroad  Company, 
17  Wallace,  322. 

1875. 

United    States   v.    Reese,  92    United 

States,  214. 

1877. 

United  States  v.  Fox,  95  United  States, 

670. 

1879. 

Trade  Mark  Cases,  100  United  States, 

82. 
Kilbourn  v.  Thompson,    103    United 
States,  168. 

1882. 
United   States  v.  Harris,   106   United 
States,  629. 

1883. 
Civil  Rights  Cases,  109  United  States,  3. 

1885. 
Boyd  V.  United   States,    116   United 
States,  616. 

1887. 
Callan  v.  Wilson,  127  United  States, 
540. 


STATUTES  OF  THE  STATES  AND  TEREITOEIES. 


Alabama,  7. 

1859. 

Sinnot  v.  Davenport,  22  Howard,  227. 
Affirmed  in  Foster  v.  Davenport,  22 
Howard,  244. 


1860. 
Howards.  Bugbee,  24  Howard,  461. 

1868. 
The  Belfast,  7  Wallace,  624. 


m 


1870. 
State  Tonnage  Tax    Cases,   12  Wal- 
lace, 204. 

1872. 

Morgan  v.  Parham,  16  Wallace,  471. 

1873. 
Horn  V.  Lockhart,  17  Wallace,  570. 

1887. 
Leloup  i;.  Port  of  Mobile,  127  United 
States,  640. 

Arkansas,  4. 

1850. 
Woodruff  V.  Tapnall,  10  Howard,  190. 

1853. 
Cnrran  t'.  Arkansas,  15  Howard,  304. 

1866. 
McGee  v.  Mathis,  4  Wallace,  143. 

1871. 
Osborn  v.  Nicholson,  13  Wallace,  654. 

California,  7. 

1854. 
Hays  V.  Pacific  Mail  Steamship  Com- 
pany, 17  Howard,  596. 

1860. 
Almy  V.  California,  24  Howard,  169. 

1871. 
Low  V.  Austin,  13  Wallace,  29. 

1875. 
Chy    Lung    v.    Freeman,    92    United 
States,  275. 

1885. 
Yick    Wo    €.    Hopkins,,   118    United 
States,  356. 

1887. 
California  v.  Central  Pacific  Railroad 
Company,  127  United  States,  1. 

1889. 
McCall  V.  California,  136  United  States, 
104. 

Delaware,  1. 

1880. 
Neal  i\  Delaware,  103  United  States, 
.370. 

District  of  Columbia,  1. 

1888. 
Stoutenhurgh  v.  Hennick,  129  United 
States,  141. 


Florida,  1. 

1877. 
Pensacola     Telegraph     Company     v. 
Western  Union  Telegraph  Company, 
96  United  States,  1. 

Georgia,  8. 

1810. 
Fletcher  v.  Peck,  6  Cranch,  87. 

1832. 
Worcester  v.  Georgia,  6  Peters,  515. 

1871. 
White  v.  Hart,  13  Wallace,  646. 

1872. 
Gunn  V.  Barry,  15  Wallace,  610. 

1872. 
Walker  r.  Whitehead,  16  Wallace,  314. 

1875. 
Central  Railroad  Banking  Company  v. 
Georgia,  92  United  States,  665. 

Affirmed    by  Southwestern    Railroad 

Company    v.    Geoigia,    92     United 

States,  676. 

1882. 

Savannah  v.  Jesup,  106  United  States, 

563. 

1885. 

Spraigue    v.    Thompson,    118    United 
States,  90. 

Illinois,  6. 

1843. 
Bronson  v.  Kinzie,  1  Howard,  311. 

1844. 
McCracken  v.   Hayward,  2  Howard, 

608. 

1866. 

Bradley  v.  People,  4  Wallace,  459. 

1866. 

Von  Hoffman  c.  Quincy,  4  Wallace, 

535. 

1878. 

University  v.  People,  99  United  States, 

309. 

1886. 

Wabash,  St.  Louis  and  Pacific  Rail- 
way Company  i'.  Illinois,  118  United 
States,  .")57. 


^i7 


Tndiana,  3. 

1845. 
Gantley's   Lessee  v.  Ewing,  3   How- 
ard, 707. 

1881. 

Evansville  Bank  v.  Britton,  105  United 

States,  322.  I 

1886.  I 

Western  Union  Telegraph  Company 
/•.  Pendleton,  122  United  States,  347. 

Iowa,  4. 

1850. 
Webster  v.  Reid,  11  Howard,  437. 

1886.      . 
Barron  v.  Burnside,  121  United  States, 


1867. 
White  I'.  Cannon,  6  Wallace,  443. 

1874. 
Cannon  v.  New  Orleans,  20  Wallace, 


577. 


1875. 


186. 


1887. 


Bowman  v.  Chicago  and  Northwestern 

Railway     Company,     125      United 

States,  465. 

188!). 

Leisy  u.  Hardin,  135  United  States,  100. 

Kansas,  3. 

i86t;. 

The  Kansas  Indians,  5  Wallace,  737. 

1872. 
Railway  Company  v.  Pre^cott,  16  Wal- 
lace, 603. 

1874. 

Loan  Association  r.  Topeka,  20  Wal- 
lace, 655. 

Kentucky,  4. 

1823. 
Green  v.  Biddle,  8  Wheaton,  1. 

1882. 

Bush  V.  Kentucky,  107  United  States, 

110. 

1885. 

Louisville  Gas  Company   v.  Citizen's 

Gas  Company,    115   United  States, 

683. 

1800. 

Crutcher  v.    Kentucky,    141    United 

States,  47. 

Louisiana,  19. 

181Vt. 
McMillan  v.  McNeill,  4  Wheaton,  209. 

1867. 
Steamship  Company  v.  Portwardens, 
6  Wallace,  31. 


Commissioners     v.     North      German 
Lloyd,  tt2  United  States,  259. 

1875. 
Board  of  Liquidation  v.  McComb,  92 
United  States,  531. 

1876. 

Fester  v.  Master  and  Wardens  of  the 

Port   of    New    Orleans,  94    United 

States,  246. 

1877. 

Hall  V.  DeCuir,  95  United  States,  485. 

1880. 

Wolff  V.    New    Orleans,    103    United 

States,  358. 

1881. 

Louisiana    v.    Pilsbury,    105    L^nited 
States,  278. 

1881. 
Asylum  v.  New  Orleans,  105  United 
States,  362. 

1882. 
Louisiana  v.  Jumel,  107  United  States, 

711. 

1883. 

Nelson    v.    St.    Martin's    Parish,  111 
United  States,  716. 

1884. 

Moran  v.   New    Orleans,   112  United 

States,  69. 

1885. 

New  Orleans  Gas  Light  Company  v. 

Louisiana     Light     Company,      115 

United  States.  650. 

1885. 
New  Orleans  Water  Works  Company 
V.  Rivers,  115  United  States,  674. 

1885. 
Fisk   V.    Jefferson    Police    Jury,    116 
United  States,  131. 

1886. 
New  Orleans  v.  Hou.ston,  119  United 
States,  265. 


38 


1886. 
St.  Tammany  Water  Works  v.  New 

Orleans  Water  Works,  120  United 

States,  64. 
Affirming  New  Orleans  Water  Works 

V.  Rivers,  115  United  States,  674. 

Maine,  1. 

18G4. 
Hawthorne  v.  Calef.  2  Wallace,  10. 

Maryland,  9. 

1819. 

McGulloch  V.  Maryland,  4  Wheaton, 

.316. 

1827. 

Brown  v.  Maryland,  12  Wheaton,  419. 

1832. 
Boyle  V.  Zacharie,  6  Peters,  348. 

1845. 
Gordon  v.  Appeal  Tax  Court,  3  How- 
ard, 133. 

1847. 

Cook  V.  Moffat,  5  Howard,  295. 

1851. 
Achison  v.  Huddleson,  12  Howard,  293. 

1870. 
Ward  v.  Maryland,  12  Wallace,  418. 

1879. 

Guy  V.  Baltimore.  100  United  States, 

434. 

1886. 

Corson  v.  Maryland,  120  United  States, 

502. 

Massachusetts,  2. 

1849. 
Norris  v.  Boston,  7  Howard,  283. 

1887. 
Western  Union  Telegraph  Company 
V.  Massachusetts,  125  United  States, 
530. 

Michigan,  2. 

1885. 
Walling    V.    Michigan,    116    United 
States,  446. 

1886. 

Fargo  w.  Michigan,  121  United  States, 
230. 

Minnesota,  3. 

1857. 
Irvine  v.  Marshall,  20  Howard,  558. 


1889. 
Chicago,  Milwaukee  &  St.  Paul  Rail- 
way   Company    v.    Minnesota,    134 
United  States,  418. 
1889. 
Minnesota    v,     Barher,     136    United 
States,  314. 

Mississippi,  1. 

1848. 
Planters'  Bank  v.  Sharp,  6  Howard, 
301. 

Missouri,  11. 

1830. 

Craig  V.  Missouri,  4  Peters,  410. 

Affirmed    in    Byrne    v.    Missouri,   ;8 

Peters,  40. 

1839. 

Bagnell  v.  Broderick,  13  Peters,  436. 

1866. 

Cummings  v.  Missouri,  4  Wallace,  277. 

18(^.9. 
Home  of  the  Friendless  v.  Rouse,  8 
Wallace,  430. 

1870. 
St.  Louis  V.  Ferry  Company,  11  Wal- 
lace, 423. 

1873. 
Pacific  Railroad  Company  v.  Maguire, 
20  Wallace,  36. 

1875. 
Wei  ton  V.  Missouri,  91  United  States, 
275. 

1877. 
Railroad  Company  v.  Husen,  95  United 

States,  465. 

1882. 

Kriug  V.  Missouri,  107  United  States, 

221. 

1884. 

Cole  V.  LaGrange,  113  United  States,  1. 

1886. 
Seibert U.Lewis,  122 United  States, 284. 

Montana,  1. 

1870. 
Dunphy  v.   Kleinsmith,   11   Wallace, 
I       610. 

Nevada,  1. 

1867. 
Crandall  v.  Nevada,  6  Wallace,  35, 


39 


New  Ilaiiipshire,  1. 

1819. 
Trustees    of    Dartinoutli    College   v. 
Woodward,  4  Wlieaton,  518. 

New  Jersey,  2. 

1812. 
New  Jersey  v.  Wilson,  7  Cranch,  1()4. 

1877. 
New  Jersey  v.  Yard,!).")  United  States, 
104. 

New  York,  16. 

1819. 
Sturges  V.  Crowniiisliield,  4  Wlieaton, 

12-2. 

1824. 

Gibbons  v.  Ogden,  It  Wheaton,  1. 

1827. 
Ogden  V.  Saunders,  12  Wheaton,  2i:?. 

1849. 
Smith    V.    Turner     (Tlie     Passenger 
Cases),  7  Howard,  283. 

1862. 
Bank  of  Commerce  v.  New  York  City, 
2  Bhick,  620. 

1864. 
Bank  Tax  Case,  2  Wallace,  200. 

186.5. 
The  Binghamton    Bridge,  3  Wallace, 

31. 

1865. 

Van  Allen  v.  The  Assessors,  3  Wal- 
lace, 573. 

1866. 

New  York  Indians,  5  Wallace,  761. 

1868. 

The  Banks  «;.The  Mayor,  7  Wallace,  16. 

Atfirmed  in  Banks  v.  Supervisors,  7 

Wallace,  26. 

1875. 

Henderson  v.  New  York,  92   United 

States,  259. 

1876. 

Inman  Steamship  Company  v.  Tinker, 
94  United  States,  238. 
1879. 
People  V.  Weaver,  100  United  States, 
539. 

1881. 

Supervisors    v.    Stanley,    105    United 
States,  303. 


■1881. 

Hills  V.  Exchange  Bank,  105  United 

States,  319. 

1882. 

People  V.  Compagnie  Gcm-rale  Trans- 

atlantique,  107  United  States,  59. 

North  Carolina,  2. 

1871. 
Wilmington  Railroad  v.  Reid,  13  Wal- 
lace, 264. 

1877. 

Edwards  v.  Kearzey,  96  United  States, 
.503. 

Ohio,  U. 

1824. 
Osborn  v.  Bank  of  the  United  States, 
9  Wheaton,  738. 

1845. 
Neil  V.  Ohio,  3  Howard,  720. 

1853. 
State  Bank  of  Ohio  v.  Kuoop,  16  How- 
ard, 369. 

1855. 

Dodge  V.  Woolsey,  18  Howard,  331. 

1861. 
Franklin    Branch    Bank    v.   State  of 
Ohio,  1  Black,  474. 

1862. 
Wright  V.  Sill,  2  Black,  544. 

1879. 
Pelton  V.  National  Bank,  101  United 

States,  143. 

1887. 
Whitbeck    v.    Mercantile    Bank,    127 
United  States,  193. 
1887. 
Ratterman    v.  Western  Union   Tele- 
graph Company,  127  United  States, 
411. 

Oregon,  2. 

1890. 
Penuoyer  v.  McConnaughy,  140  United 
States,  1. 

1890. 

Scotland  County  Court  i'.  United  States 
ex  rel.  Hill,  140  United  States,  41. 

Pennsylvania,  l:i. 

1809. 
United  States  v.  Peters,  5  Cranch,  115. 


40 


1821. 
Farmers    and     Mechanics    Bank    v. 
Smith,  G  Wheaton,  131. 

1842. 
Dobbins  v.  Erie  County,  16  Peters,  435. 

1842. 
Prigg  V.  Pennsylvania,  K!  Peters,  539. 

1845U 
Searight  v.  Stokes,  3  Howard,  151. 

1808. 
Kailroad  Company  v.  Jackson,  7  Wal- 
Jace,  262. 

1872. 
State  Freight  Tax,  15  Wallace,  232. 

1872. 
State  Tax  on  Foreign-held  Bonds,  15 
Wallace,  300. 

1878. 
Cook    V.    Pennsylvania,    97    United 
States,  5(36. 

1884. 
Boyer  v.  Boyer,  113  United  States,  689. 

1884. 
Gloucester  Ferry  Company  v.  Pennsyl- 
vania, 114  United  States,  196. 

1886. 
Philadelphia  and  Southern  Steamship 
Company      v.      Pennsylvania,     122 
United  States,  326. 

1889. 
Norfolk  and  Western  Railroad   Com- 
pany V.   Pennsylvania,   136   United 
States,  114. 

South  Caroliua,  4. 

1829. 
Weston  V.  Charleston,  2  Peters,  449. 

1872. 
Humphrey  v.  Pegues,  16  Wallace,  244. 

1873. 
Barings  v.  Dabney,  19  Wallace,  1. 

1877. 
Murray    v.    Charleston,     96     United 
States,  432. 

Tennessee,  8. 

1868. 
Furman  r.  Nichol,  8  Wallace,  44. 


1877. 
Farrington    v.   Tennessee,   95  United 
States,  679. 

1877. 
Memphis  v.  United  States,  97  United 

States,  293. 

1878. 

Keith  V.  Clark,  97  United  States,  454. 

188.3. 
Stevins  v.  Griffith,  111  United  States, 
48. 

1885. 
Pickard    v.    Pullman     Southern    Car 

Company,  117  United  States,  34. 
Affirmed    in    Tennessee    v.    Pullman 
Southern  Car  Company,  117  United 
States,  51. 

1885. 

Van  Brocklin  v.  Tennessee,  117  United 
States,  151. 

1886. 

Bobbins  v.  Shelby  County  Taxing  Dis- 
trict, 120  United  States,  489. 

Texas,  5. 

1868. 
Texas  v.  White,  7  Wallace,  700. 

1873. 
Peete  v.  Morgan,  19  Wallace,  581. 

1880. 
Tiernan  v.  Rinker,  102  United  States, 
123. 

1881. 

Telegraph    Company   v.    Texas,     105 

United  States,  460. 

1888. 

Asher  v.  Texas,  128  United  States,  129. 

Utah,  1. 

1874. 
Ferris  v.  Higley,  20  Wallace,  375. 

Vermont,  1. 

1823. 

Society  for  the  Propagation  of  the 
Gospel  V.  New  Haven,  8  Wheatou, 
464. 

Virginia,  13. 

1815, 
Terrett  v.  Taylor,  9  Cranch,  43. 


41 


1851. 
Pennsylvania    r.     Wheeling    Bridge 
Company,  13  Howard,  518. 

1870. 
Thomas  v.  City  of  Richmond,  12  Wal- 
lace, 349. 

1877. 
Williams  v.  Bruffy,  1)6  United  States, 
17f). 

18711. 
Hauenstein    ?;.   Lynham,   100  United 
States,  483. 

1880. 
Hartmau    r.  Greenhovv,    102    United 
Slates,  f)72. 

1880. 
Webber  v.  Virginia,  103  United  States, 
.344. 

1882. 

Antoni     v.    Greenhow.     107     United 
States,  7f;9. 

1884 
Virginia  Coupon    Cases,    114  United 
States,  260. 

1885. 

Effinger  v,  Kenney,  115  United  States, 

566. 

1885. 
Royall  ?■.  Virginia,  116  United  States, 

572. 


18!t0. 
Brimmer    v.     Rebman,     138    United 
States,  78. 

18!  K). 
Voight  r.  Wright,  141  United  States, 
62. 

West  Virginia,  3. 

1872. 
Pierce  v.  Carskadon,  16  Wallace,  234. 

1879. 
Strauder  v.  West  Virginia,  100  United 


States,  303. 


1882. 


Parker.sburg    v.    Brown,    106    United 
States,  487. 

Wisconsin,  3. 

1874. 

Insurance  Company  v.  Morse,  20  Wal- 
lace, 445. 

1876. 
Affirmed  by  Doyle  v.  Continental  In- 
surance Company,  04  United  States, 
535. 

1881. 
Koshkouong  v.    Burton,    104    United 
States,  668. 


FOEEGOING  DECISIONS   BY   DECADES. 


1790-1800 
1800-1810 
1810-1820 
1820-1830 
1830-1840 


Statutes  of  the  United  States. 


1840-1850 
1850-18(iO 
1860-1870 
1870-1880 
1880-1893 


0 
1 
5 
6 

5 

20 


Statutes  of  the  States  and  Territories. 


k_7  1,111  lllV 

1790-1800 

0 

1850-1860 

10 

1800-1810 

1 

18()0-1870 

24 

1810-1820 

7 

1870-1880 

51 

1820-1830 

7 

1880-185K) 

60 

1830-1840 

5 

1890-1894 

5 

1840-1850 

12 

182 


APPENDIX   III. 


The  following-  table  shows  the  membership  of  United  States 
Senate  and  of  House  of  Representatives  in  each  Congress 
from  178i»  to  1.S94,  with  the  number  of  lawyers  in  each 
Senate  and  the  nuinber  in  each  House,  and  their  percentage 
of  the  whole  numl)cr  of  each  and  of  the  whole  number  of 
both  Senate  and  House,  and  also  the  percentage  of  law^^ers 
in  the  male  population  of  the  United  States  during  the  time 
of  each  Congress  since  J  850. 

First  Congress,  1189-1191. 

Senate.  House.  Senate  and  House. 

Senators   ....    29  Representatives     .    (Jo  Members  ....     94 

Lawyers    ....    10  Lawyers    ....    17  Lawyers    ....    27 

Lawyers  34  per  cent,  of  Senate. 

Lawyers  26  per  cent,  of  House. 

Lawyers  29  per  cent,  of  Senate  and  House. 

Second  Congress,  1191-1193. 

Senate.  House.  Senate  and  House. 

Senators   ....    31  Representatives    .    72  Members  ....  103 

Lawyers    ....     11  Lawyers   ....    21  Lawyers    ....    32 

Lawyers  35  per  cent,  of  Senate. 

Lawyers  29  per  cent,  of  House. 

Lawyers  32  per  cent,  of  Senate  and  House. 

Third  Congress,  1193-119.5. 

Senate.  House.  Senate  and  House. 

Senators   ....    32  Representatives    .  10! i  Members  ....  141 

Lawyers    ....    13  Lawyers  ....     13  Lawyers   ....    40 

Lawyers  41  per  cent,  of  Senate. 

Lawyers  25  per  cent,  of  House. 

Lawyers  28  per  cent,  of  Senate  and  House. 


44 


Senate. 


Senators 
Lawyers 


Fourth  Congress,  1795-1797. 

House. 
.    43  Representatives  .    114 

.    23  Lawyers  ....      26 

Lawyers  53  iier  cent,  of  Senate. 
Lawyers  23  per  cent,  of  House. 
Lawyers  31  per  cent,  of  Senate  and  House. 


Senate  and  House. 

Members  ....  157 
Lawyers   ....    49 


Fifth  Congress,  1797-1799. 


Senate.  House. 

Senators    ....    45  Representatives    .  116 

Lawyers    ....    18  Lawyers   ....    27 

Lawyers  40  per  cent,  of  Senate. 

Lawyers  23  per  cent,  of  House. 

Lawyers  28  per  cent,  of  Senate  and  House. 


Senate  and  House. 
Members  ....  161 
Lawyers   ....    45 


Senate. 


Senators 
Lawyers 


Sixth  Congress,  1799-1801. 


House. 
.    38  Representatives    .  112 

.    24  Lawyers   ....    36 

Lawyers  63  per  cent,  of  Senate. 

Lawyers  32  per  cent,  of  House. 

Lawyers  40  per  cent,  of  Senate  and  House. 


Senate  and  House. 
Members  ....  150 
Lawyers   ....    60 


Senate. 


Senators 
Lawyers 


Seventh  Congress,  1801-1803. 


House. 

.    38  Representatives    .  112 

.    19  Lawyers   ....    23 

Lawyers  50  per  cent,  of  Senate. 
Lawyers  21  per  cent,  of  House. 
Lawyers  28  per  cent,  of  Senate  and  House. 


Senate  and  House. 

Members  ....  150 
Lawyers  ....    42 


Eighth  Congress,  1803-1805. 

Senate.  House. 

Senators    ....    43  Representatives     .  148 

Lawyers    ....    17  Lawyers   ....    23 

Lawyers  40  per  cent,  of  Senate. 

Lawyers  16  per  cent,  of  House. 

Lawyers  21  per  cent,  of  Senate  and  House. 


Senate  and  House. 

Members  ....  191 
Lawyers  ....    40 


45 


Ninth  Congress,  1805-1 S07. 


House. 
Repieseutatives 


Senate. 
Senators    ....    37  Repieseutatives    .  147 

Lawyers    ....    13  Lawyers   ....     1!) 

Lawyers  35  per  cent,  of  Senate. 
Lawyers  13  per  cent,  of  House. 


Senate  and  House. 

Members  ....  184 
Lawyers   ....    .32 


Lawyers  17  percent,  of  Senate  and  House. 


Tentli  Congress,  ISOI-ISOO. 

Senate.  House. 

Senators    ....    38     '      Kepresentatives    .  146 
Lawyers    ....    13  Lawyers   ....    17 

Lawyers  34  per  cent,  of  Senate. 

Lawyers  12  per  cent,  of  House. 

Lawyers  16  per  cent,  of  Senate  and  House. 


Senate  and  House. 
Members  ....  184 
Lawyers   ....    30 


Senate. 


Senators 
Lawyers 


Eleventh  Congress,  1809-1811. 

House. 

.    45  Representatives    .  156 

.    15  Lawyers   ....    28 

Lawyers  33  per  cent,  of  Senate. 
Lawyers  18  per  cent,  of  House. 
Lawyers  21  per  cent,  of  Senate  and  House. 


Senate  and  House. 

Members  ....  201 
Lawyers    ....    43 


Senate. 


Senators 
Lawyers 


Twelfth  Congress,  1811-1813. 

House. 

.    37  Representatives    .  14(i 

.    12  Lawyers  ....    .32 

Lawyers  32  per  cent,  of  Senate. 
Lawyers  22  per  cent,  of  House. 
Lawyers  24  per  cent,  of  Senate  and  House. 


Senate  and  House. 

Members  ....  183 
Lawyers    ....    44 


Thirteenth  Congress,  1813-1815. 


Senate.  House. 

Senators    ....    46  Representatives    .  li)7 

Lawyers    ....    12  Lawyers   ....    53 

Lawyers  25  per  cent,  of  Senate. 

Lawyers  27  per  cent,  of  House. 

Lawyers  27  per  cent,  of  Senate  and  House. 


Senate  and  House. 

Members  ....  243 
Lawyers   ....    53 


46 


Fourteeiith  Congress,  1815-1817. 

Senate.  House. 

Senators    ....    43  Representatives    .  20(5 

Lawyers    ....    18  Lawyers   ....    57 

Lawyers  42  jjer  cent,  of  Senate. 

Lawyers  28  per  cent,  of  House. 

Lawyers  30  per  cent,  of  Senate  and  House. 


Senate  and  House. 

Members  ....  249 
Lawyers   ....    75 


Fifteenth  Congress,  1817-1819. 

Senate.  House. 

Senators    ....    46  Representatives    .  198 

Lawyers    ....    57  Lawyers   ....    65 

Lawyers  54  per  cent,  of  Senate. 
Lawyers  33  per  cent,  of  House. 


Senate  and  House. 
Members  ....  244 
Lawyers   ....     90 


Lawyers  37  per  cent,  of  Senate  and  House. 


Sixteenth  Congress,  1819-1821. 


House. 
Representatives 


Senate. 
Senators    ....    51  Representatives    .  199 

Lawyers    ....    22  Lawyers  ....    58 

Lawyers  43  per  cent,  of  Senate. 

Lawyers  29  per  cent,  of  House. 


Senate  aiid  House. 
Members  ....  250 
Lawyers   ....    80 


Lawyers  32  per  cent,  of  Senate  and  House. 


Senate. 


Senators 
Lawyers 


Seventeenth  Congress,  1821-1823. 


House. 

.    52  Representatives    .  205 

.    22  Lawyers   ....    52 

Lawyers  42  j)er  cent,  of  Senate. 

Lawyers  25  per  cent,  of  House. 

Lawyers  29  per  cent,  of  Senate  and  House. 


Senate  and  House. 

Members  ....  257 
Lawyers  ....    74 


Eighteenth  Congress,  1823-1825. 


Senate.  House. 

Senators    ....    53  Representatives    .  224 

Lawyers    ....    28  Lawyers   ....    66 

Lawyers  53  per  cent,  of  Senate. 

Lawyers  29  per  cent,  of  House. 

Lawyers  34  per  cent,  of  Senate  and  House. 


Senate  and  House. 
Members .     .     .     .277 
Lawyers  ....    94 


Nlnetcdith  Congress,  1S25-1S2I. 


Senate. 


Senators 
Lawyers 


House. 

.    G2  Representatives    .  228 

.     36  Lawyers   ....     77 

Lawyers  ')8  per  cent,  of  Senate. 
Lawyers  34  per  cent,  of  House. 
Lawyers  39  per  cent,  of  Senate  and  House. 


Senate  and  House. 

Members  ....  290 
Lawj'ers    ....  113 


Senate. 


Senators 
Lawyers 


Twentieth  Congress,  1827-1821). 

House. 
53  Representatives    .  220 


.    39  Lawyers   ....    83 

Lawyers  74  per  cent,  of  Senate. 
Lawyers  38  per  cent,  of  House. 
Lawyers  45  per  cent,  of  Senate  and  House. 


Senate  and  House. 

Members  ....  273 
Lawyers   .     .     .     .122 


SenatL 


Senators 
Lawyers 


Twenty-First  Congress,  1829-1831. 


House. 

.    55  Representatives    .  224 

.    45  Lawyers  ....    87 

Lawyers  83  per  cent,  of  Senate. 
Lawyers  39  per  cent,  of  House. 
Lawyers  47  per  cent,  of  Senate  and  House. 


Senate  and  House. 

Members  ....  279 
Lawyers    ....  132 


Twenty-Second  Congress,  1831-1833. 


Senate.  House. 

Senators    ....    53  Representatives    .  220 

Lawyers    ....    40  Lawyers   ....    97 

Lawyers  75  per  cent,  of  Senate. 

Lawyers  44  per  cent,  of  House. 


Senate  and  House. 

Members  ....  273 
Lawyers    ....  137 


Lawyers  50  per  cent,  of  Senate  and  House. 


Twenty-Tliird  Congress,  1833-1835. 


Senate.  House. 

Senators    ....    53  Representatives    .  2.59 

Lawyei-s    ....    39  Lawyers   .     .     .     .105 

Lawyers  74  per  cent,  of  Senate. 

Lawyers  41  per  cent,  of  House. 

Lawyers  4(5  per  cent,  of  Senate  and  House. 


Senate  and  House. 

Members  ....  312 
Lawyers   ....  144 


48 


Twenty-Fourth  Congress,  1835-1837. 


Senate.  House. 

Senators    ....    62  Representatives    .  257 

Lawyers    ....    42  Lawyers   ....  105 

Lawyers  G8  per  cent,  of  Senate. 

Lawyers  41  per  cent,  of  House. 

Lawyers  46  per  cent,  of  Senate  and  House 


Senate  and  House. 
Members  ....  319 
Lawyers   ....  147 


Twenty-Fifth  Congress,  1837-1839. 


Senate.  House. 

Senators    ....    58  Representatives    .  260 

Lawyers    ....    38  Lawyers    ....  109 

Lawyers  06  per  cent,  of  Senate. 

Lawyers  42  per  cent,  of  House. 

Lawyers  46  per  cent,  of  Senate  and  House 


Senate  and  House. 
Members  ....  318 
Lawyers    ....  147 


Senate. 


Senators 
Lawyers 


Twenty-Sixth  Congress,  1839-1841. 


House. 

.    60  Representatives    .  255 

.     45  Lawyers   ....  122 

Lawyers  75  per  cent,  of  Senate. 
Lawyers  48  per  cent,  of  House. 
Lawyers  53  per  cent,  of  Senate  and  House. 


Senate  and  House. 

Members  ....  315 
Lawyers    ....  167 


Twenty-Seventh  Congress,  1841-1843. 


Senate.  House. 

Senators    ....    59  Representatives    .  238 

Lawyers    ....    50  Lawyers   ....  124 

Lawyers  85  per  cent,  of  Senate. 

Lawyers  48  per  cent,  of  House. 

Lawyers  55  per  cent,  of  Senate  and  House 


Senate  and  Ho-use. 

Members  ....  317 
Lawyers  ....  174 


Twenty-Eighth  Congress,  1843-1845. 


Senate.  House. 

Senators    ....    58  Representatives    .  237 

Lawyers    ....    53  Lawyers   ....  103 

Lawyers  91  per  cent,  of  Senate. 

Lawyers  43  per  cent,  of  House. 

Lawyers  .54  per  cent,  of  Senate  and  House. 


Senate  and  House. 

Members .     .    .     .295 
Lawyers  ....  158 


LAW  LIDt^ARY 
E«SITY  OF  CALIP€)RMA 


■w   j^^rt 


A  'k.Ty^mMT 


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AA    000  604 


